Her Majesty the Queen - v. -, 2011 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 034 Date: February 17, 2011 Information: 31714721 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chad Christopher Rogers Appearing: Ms. Marla Calvert For the Crown Mr. Timothy Behler For the Accused JUDGMENT B. J. TOMKINS , J [ 1 ] On August 5, 2008, three young men reported to the Regina Police Service that they had been robbed the evening before. They had been walking by a residential park when a man called them over.

It is conceded that the man was the accused, Chad Rogers, and that he was very intoxicated. [ 2 ] When the young men did not come after he called to them, Mr. Rogers asked them whether they were scared and suggested that they should be. He jumped in front of them and demanded their money, threatening that someone would be hurt if they did not give it.

[ 3 ] When the first young man responded that he had no money, Mr. Rogers hit him in the face. The second young man showed his wallet and that it was empty; Mr. Rogers knocked receipts from his hand and punched him in the face. He then hit the first young man again. [ 4 ] In the meantime, Mr. Rogers had realized that the third young man was related to a friend of his and sent him away. No threats were made to him, nor was money demanded from him.

Instead, he went to the mutual friend who came to the scene and settled events. [ 5 ] Neither of the young men suffered significant injury as a result of the violence used against them. [ 6 ] Based on these incidents, Mr. Rogers was charged that he, with intent to steal Canadian currency, used violence toward Thomas Wilkes and Terry Selinger and thereby committed the offence of robbery, contrary to

section 344 (

b) of the Criminal Code . Mr. Rogers pleaded guilty to this charge. [ 7 ] I must fix an appropriate sentence for Mr. Rogers. Personal Circumstances of the Accused, Chad Rogers [ 8 ] Mr. Rogers is 29 years old and was 27 at the time of this offence. [ 9 ] He has a prior record, both as a youth and an adult, including three convictions involving violence. The most recent of these, and the only such conviction as an adult, was for common assault almost ten years ago. His most recent convictions were made in November 2010. [ 10 ] Mr.

Rogers is the third child in a hard-working family and his behaviour was challenging and distressing for them for some time. However, his mother provided a letter in which she says that he has “done a complete turnaround” in the last 3 ½ years. She says that whereas he used to associate with questionable people, he is now settled with a wonderful woman and works hard at his job. She says the family is proud of him and it is implicit in her letter that there was a significant period of time when she could not have said this. [ 11 ] I was also provided a letter from Mr. Rogers’ employer. He says that Mr.

Rogers has worked at his bar and grill since April 2010 and is a very valued employee. While he began in more menial roles, he has worked hard and willingly and is now a strong leader in the workplace. He is seen as reliable and trustworthy. He will be welcomed back when his sentence has been completed. Submissions of Counsel [ 12 ] For the Crown, Ms. Calvert drew my attention to R. v. McKay [1] where a sentence of two years less a day was imposed. Based on that case and the fact that the circumstances in McKay were more serious than those before me, the Crown admits that an appropriate sentence for Mr.

Rogers will be less than that imposed on Mr. McKay. She suggests a sentence of 18 months incarceration. [ 13 ] Mr. Behler, on the other hand, submitted that Mr. Rogers’ offence is on the lower end of the scale for robbery and urged me to consider a sentence in the range of three to nine months incarceration, followed by probation. Analysis

[ 14 ] In imposing a sentence for Mr. Rogers, I must be mindful of the purposes and objectives of sentencing set out in the Criminal Code . [ 15 ]

Section 718 states that the fundamental purposes of sentencing are to contribute to respect for the law and to maintain a just, peaceful and safe society.

The objectives of sentencing are: · denunciation of unlawful conduct; · deterring the offender and others from committing offences; · separating offenders from society, when necessary; · assisting in the rehabilitation of offenders; · promoting a sense of responsibility in offenders; · providing reparations for harm done to victims or the community; and · acknowledging the harm done to victims and to the community. [ 16 ] Sections 718.1 and 718.2 set out principles that must be applied in determining an appropriate sentence.

The following of the principles are most applicable to this matter: · The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. · The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and · The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 17 ] In Mr. Rogers’ case, there are a number of aggravating factors.

His offence involved the use of violence and, equally offensive, the instillation of fear in his three victims. The violence was entirely gratuitous as the three young men did not have any money and told Mr. Rogers so; the infliction of injury did not and could not yield the result Mr. Rogers sought. [ 18 ] Mr. Rogers has a significant record both as a youth and adult, including one conviction for common assault and two for assault with a weapon.

His record also shows convictions for, among many others, uttering threats, weapon possession, property offences and obstruction. [ 19 ] In mitigation, however, I note that the most recent conviction involving violence was for common assault and that conviction is almost ten years old. The weapons-related charges are years older than that. His most recent property-related offence is also almost ten years old. [ 20 ] His November 2010 convictions are in regard to offences that occurred between 2003 and 2007.

Including this conviction, which involves an offence in August 2008, he has no record for offences at all in the last two and a half years. [ 21 ] I think it mitigating that the offence was neither sophisticated nor premeditated and that no weapons were involved. I am also impressed that Mr. Rogers personally apologized to his victims some time ago. [ 22 ] Mr. Rogers’ counsel says that Mr. Rogers finally “gets it” and that he is unlikely to return to the pattern of criminal conduct

that his record suggests. I have reason to believe that this is not puffery. [ 23 ] First, I am mindful of the emotional but apparently honest words of Mr. Rogers’ mother, suggesting that he has turned himself around in recent years. Her submission is supported by the fact that there are no offences, including this one, after August 2008. It is also supported by the very positive letter of reference provided by Mr. Rogers’ employer; he does not describe a man who is walking a downward path. [ 24 ] Against these factors, I turn to sentencing decisions in other cases. [ 25 ] The Crown urged me to consider R. v.

McKay , supra . I agree with the Crown that the case involves circumstances that are more serious than those before me. [ 26 ] Mr. McKay approached two mentally-challenged boys near an autoteller. Mr. McKay accosted the older of them and demanded $100.00. The victim did not have this amount but offered the few cents he had in his pocket. Mr. McKay refused the offer. He pushed the younger brother and punched the victim in the face. A passerby intervened and held Mr. McKay until the police arrived. [ 27 ] Mr. McKay was on bail for an offence of violence – aggravated assault – at the time of this offence.

His bail conditions included a curfew and abstinence; he was in breach of both of these conditions, as well as that to keep the peace and be of good behaviour, at the time of this offence. [ 28 ] Also, Mr. McKay, while only 22 years old, had a relatively lengthy record including at least 35 convictions. [ 29 ] These factors, plus the fact that his victims were visibly vulnerable, render Mr. McKay’s offence more serious. [ 30 ] Other cases submitted for my consideration include R. v. Cheekinew [2] , R. v. Peepeetch [3] , R. v. Pakula [4] , R. v. Smallboy [5] , R. v. Hunter [6] and R. v. Moorehead [7] .

In each of these cases the robberies involved some or all of: weapons, more serious assaults with more serious consequences to the victims and offenders with more serious records. All involve multiple assailants against single victims. It is likely for these reasons that in all but two - Cheekinew and Pakula - the Court of Appeal imposed or upheld sentences in excess of that sought by the Crown in this case. [ 31 ] Mr. Rogers’ offence is distinguished in that it involves none of these factors.

Given this and the fact that the Crown does not seek a sentence exceeding 18 months incarceration, I turn to the two authorities that imposed sentences within the range the Crown seeks in this case. [ 32 ] In Cheekinew , the Court of Appeal upheld a sentence of 18 months incarceration. Mr. Cheekinew and his brother approached the victim and asked for cigarettes and money. When the victim declined, Mr. Cheekinew grabbed him, rifled his pockets and took a water bottle from him. The victim tried to flee onto the bus but before he did, Mr.

Cheekinew punched him with such force that his tooth was chipped and his right eye was swollen. Mr. Cheekinew’s record included two prior convictions for robbery. Clearly, Mr. Cheekinew’s circumstances and those of the offence are more aggravated than those in the case before me. [ 33 ] In Pakula , the offender and four others drove alongside the victim who was riding a bike. When the victim rebuked him, the offender chased him down. Another man from the car told the victim to stop “lipping off” and pushed him, causing him to fall off the bike. Mr.

Pakula then showed a pair of scissors and threatened to use them if the victim did not surrender the bike. Fortunately, the victim was able to ride away. [ 34 ] Believing this was Mr. Pakula’s first offence, the trial judge suspended sentence and placed Mr. Pakula on probation for one

year. In fact, Mr. Pakula had misled the court. He had nine previous convictions, at least five of which were related. By the time his appeal was heard, he had completed five months in a community training centre. Taking this into account, the Court of Appeal allowed the Crown’s appeal and imposed a sentence of ten months’ incarceration followed by two years of probation. [ 35 ] I have also considered R. v. Rollheiser [8] . Mr. Rollheiser and two others, after an afternoon of drinking, went for a walk. They came upon and approached a group of six boys under 16 years of age. In a menacing manner, Mr.

Rollheiser and his co-accused threatened and intimidated the young boys over a period of 30 to 45 minutes. Eventually one of the boys offered to give them money. The accused and his co-accused took it and demanded more. Two of the others anted up small amounts. By this point the young boys were able to run and they did. [ 36 ] This robbery and a concurrent conviction for assault were Mr. Rollheiser’s first criminal offences. He had a supportive family and was considered a low risk to re-offend.

A sentence of 90 days incarceration followed by one year probation was upheld by the Court of Appeal. [ 37 ] Counsel are agreed that there will be a custodial sentence in this case. I agree. A non-custodial sentence in these circumstances and given the record of this accused could not be supported. [ 38 ] I am satisfied that an appropriate sentence will be significantly lower than that imposed in McKay but certainly higher than that in Rollheiser .

Of the authorities provided, I find Rollheiser and Pakula most instructive. [ 39 ] I have considered the sentences imposed in those cases - 90 days and ten months - and the favourable and aggravating factors that distinguish those cases from Mr. Rogers’ case. I have also considered the aggravating factors at play in this case, but also the many mitigating factors. [ 40 ] In fixing an appropriate sentence for Mr. Rogers, I am satisfied that the sentence ought not to be so long as to irreparably disrupt Mr.

Rogers’ progress toward rehabilitation but must adequately denounce his conduct and deter others. [ 41 ] I am also mindful that Mr. Rogers’ actions on the day of this offence, and indeed for virtually all of his record, were influenced by alcohol. He has a problem with alcohol which he has apparently had some success keeping under control. It is critical to his rehabilitation that he receive assistance with his efforts in this respect. Primarily for this reason, a period of probation will follow his incarceration.

Keeping totality in mind, the period of incarceration must be such as to reflect the additional penalty of probation. [ 42 ] For all of these reasons, Mr.

Rogers will be sentenced to a period of six months incarceration, followed by a period of 12 months probation. [ 43 ] The terms of the probation will be that he: · keep the peace and be of good behaviour; · attend Court as and when required by the Court; · report to Probation Services within three working days of his release from custody and thereafter report as required by his probation officer; · abide by all reasonable and lawful instructions of his probation officer, including any instruction that he attend for assessment, counselling and/or programming for substance abuse; and · if referred for assessment, counselling or programming for substance abuse, participate actively and not behave in such manner as might cause him to be dismissed therefrom. [ 44 ] There will be an order under

section 109 of the Criminal Code prohibiting Mr. Rogers from possessing any firearm, cross-

bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance or all suchthings. [45] There will be an order under

section 487.051 requiring Mr. Rogers to provide the number of samples of bodily substances thatis reasonably required for the purpose of forensic DNA analysis. [46] In light of the imposition of a custodial sentence, there will be no Victim Impact Surcharge imposed. Comment [47] Mr. Rogers’ mother urged me not to impose a custodial sentence. She suggested, in effect, that it would serve no purpose. Iunderstand her position – that her son has changed his ways and is living a positive lifestyle.

She sees no benefit if this is disrupted. [48] In imposing a suitable sentence, I must be mindful of purposes well beyond Mr. Rogers’ current circumstances. I mustconsider the seriousness of the offence and robbery is certainly serious. Mr. Rogers must accept responsibility and be accountable. [49] I must consider deterrence, not just for Mr. Rogers but for others who might commit similar offences. Of course, I must alsoconsider Mr.

Rogers’ rehabilitation but this is only one factor among many that must be balanced. [50] I believe the sentence I have imposed addresses all relevant principles and objectives in a balanced manner. Dated at Regina, Saskatchewan this 17th day of February, 2011. ______________________________________ B. J. Tomkins, J [1] 2010 Carswell Sask 329, 2010 SKCA 66 [2]2007 SKCA (SentDig) 24 [3]1998 SKCA (SentDig) 28 [4](1996), (SK CA), 148 Sask. R. 79, 1996 SKCA (SentDig) 95 [5]1996 SKCA (SentDig) 60 [6]1996 SKCA (SentDig) 100 [7]1990 SKCA (SentDig) 12 [8] 2006 SKCA (SentDig) 46